Sullivan v. Field

• Decision Date: 19 May 1896
• Citation: 118 N.C. 358,24 S.E. 735
• Court: North Carolina Supreme Court
• Parties: SULLIVAN et al. v. FIELD.

24 S.E. 735

118 N.C. 358

SULLIVAN et al.

v.FIELD.

Supreme Court of North Carolina.

May 19, 1896.

Unnecessary Parties—Decedents' Estates — Sale for Debts—Guarantor—Notice of Default of Debtor.

1. The joinder of unnecessary parties is not ground for demurrer.

2. An allegation, in a complaint against an administrator, that the personal and other assets are insufficient to pay costs and plaintiff's debt and that a sale of property conveyed to defendant is necessary, are sufficient to charge that property with the payment of plaintiff's debt.

3. A guarantor is not entitled to notice of default in payment by his principal, from the holder of the guaranty, when the principal, at maturity of the debt, is insolvent.

Appeal from superior court, Guilford county; Starbuck, Judge.

Action by Sullivan, Drew & Co. against E. H. C. Field, administrator, and another. From a judgment for plaintiffs, defendant administrator appeals. Affirmed.

J. E. Boyd, for appellant.

L. M. Scott and Dillard & King, for appellees.

FAIRCLOTH, C. J. The plaintiffs sue the defendant administrator of J. B. Field as guarantor for the amount due by the defendant Sally E. Bobo for goods sold and delivered to her in 1890-92. The guaranty was in these words: "In consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I hereby guaranty the payment in full for all goods sold and delivered by you to Mrs. S. E. Bobo, of Greensboro, N. C, on a credit of 60 days; consenting to any extension of time, or any other arrangement for payment made at any time between you and her, at your option. This is to be considered a continuing guaranty, and binding on the personal representatives of the parties hereto. Witness my hand and seal this 8th day of October, 1896. [Signed] J. B. Field." The defendant demurs to the complaint, as follows:

1. In the argument, a misjoinder of parties, in that the principal debtor and the guarantor are made parties defendant

A defendant may demur to the complaint when it appears that there is a defect of parties plaintiff and defendant Code, § 239, subd. 4. Too many parties is surplusage only, cured by judgment for costs, or disclaimer. A misjoinder of one who is a necessary party is fatal, for he will not be bound by the judgment. This affects the merits. A misjoinder of one who is not a necessary party is surplusage. Green v. Green, 69 N. C. 294. In this case no judgment is asked for, or rendered against, Mrs. Bobo, so that her presence is harmless.

2. That there is no sufficient allegation that the personal assets are not ample to satisfy the plaintiffs' claim without selling the property conveyed to defend...